JOEL EDWARD JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion filed July 1, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01526-CR
............................
JOEL EDWARD JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-23572-PSY
.............................................................
OPINION
Before Justices Whittington, Moseley, and Bridges
Opinion By Justice Moseley
        A jury convicted Joel Edward Jackson of sexual assault. See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 2007). The jury also found two enhancement paragraphs true. The trial court sentenced Jackson to eighty years' confinement. In six issues, Jackson argues the trial court erred: in denying his challenge for cause of a veniremember; in overruling his objection to testimony concerning an extraneous offense; in refusing to allow impeachment of the complainant; and in its rulings regarding the State's name-calling during direct examination of the complainant and regarding certain argument by the State. For the reasons that follow, we resolve Jackson's issues against him and affirm the trial court's judgment.
 
 
I. BACKGROUND
 
         Jackson was arrested and indicted for intentionally and knowingly causing the penetration of N. N.'s sexual organ, without her consent, with his sexual organ. The complainant, N. N., testified that while she was waiting for a school bus, a man forced her into his car, drove them to a park, and had vaginal intercourse with her without her consent. At the time of the assault, N. N. was a seventeen-year-old high student. She testified she could not identify her attacker after the incident because she did not get a good look at him, but at trial she identified Jackson as her attacker. There was evidence that a DNA sample from the complainant's rape kit matched Jackson's DNA.
II. CHALLENGE FOR CAUSE
        In his third issue, Jackson contends the trial court abused its discretion in denying his challenge for cause to a veniremember who was preoccupied with a planned trip so as to be unfit to serve as a juror.
        Jury selection began on a Monday. Sean Fleskes, a member of the venire, planned to take a trip on Friday to enter an antique vehicle in a contest. He said, “Thursday is good”; Friday was “very bad”; and, “all day Thursday” he “would be stressing and then probably Friday I would be a little put out.” Jackson's counsel asked him, “You're telling the Judge you can't be certain you would be in the right frame of mind?” He answered, “Yes.” Counsel then asked, “Which means you're not certain you can give him your undivided attention in this case?” Fleskes replied, “That is true, because I have worked real hard to do this and put a lot of time and money in this . . . .” Counsel challenged him for cause, which the trial court denied. The trial ended on Thursday.
        Fleskes was seated as juror number 6. Jackson's counsel stated he had exercised ten peremptory strikes but found Fleskes unacceptable based on his statements that he would not be able to give his undivided attention if the trial extended into Thursday and Friday. Counsel objected to Fleskes and requested an additional peremptory strike “so that we can exercise that against [Fleskes] specifically.”
        To preserve error with respect to a trial court's denial of a challenge for cause, an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); Cannady v. State, 11 S.W.3d 205, 208 (Tex. Crim. App. 2000); Cantu v. State, 842 S.W.2d 667, 683 (Tex. Crim. App. 1992).
        The record shows Jackson asserted a clear and specific challenge for cause to Fleskes, exhausted his peremptory strikes, and requested additional peremptory strikes. However, Jackson did not use a peremptory strike on Fleskes, identify an objectionable juror, and claim he would have struck the objectionable juror with a peremptory strike if he had one to use. Thus, he failed to meet the second, fifth, and sixth requirements to preserve his complaint for review. See Allen, 108 S.W.3d at 282; Feldman, 71 S.W.3d at 744; Cannady, 11 S.W.3d at 208; Cantu, 842 S.W.2d at 683. We resolve Jackson's third issue against him.
III. EXTRANEOUS OFFENSE
        In his first issue, Jackson contends the trial court erred in overruling Jackson's objection to testimony that he became a suspect in this case when interviewed by the police on an “unrelated matter.” In his second issue, Jackson contends the trial court erred in allowing the State to elicit testimony, over Jackson's objection, that Jackson's DNA was contained in an unspecified database and that the sample in the database matched a DNA specimen recovered from the complainant. Relying on rules of evidence 404(b) and 403, Jackson argues this testimony implied his involvement in an extraneous offense.
A.
 
Standard of Review
 
        We review the trial court's evidentiary rulings under an abuse of discretion standard, meaning we will uphold the trial court's decision if it is within “the zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh'g).
        The State is entitled to show circumstances surrounding the arrest; however, that rule is restricted by the same test as an extraneous matter, that is, the evidence must be relevant to a material issue in the case and the probative value must outweigh the prejudicial value. Barron v. State, 864 S.W.2d 189, 192 (Tex. App.-Texarkana 1993, no pet.) (citing Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990)). The proponent of evidence of “other crimes, wrongs, or acts” must satisfy the trial court that the extraneous act has relevance apart from or beyond its tendency to prove the character of the person. Tex. R. Evid. 404(b); Barron, 864 S.W.2d at 192-93.
        In evaluating rule 403 issues, courts begin with the presumption the probative value is not substantially outweighed by other factors. Tex. R. Evid. 403; Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997). The court must then balance: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Of course, these factors may well blend together in practice. Id. at 642.
B.
 
The Record
 
        Detective Cindy Greiman testified she investigated the complainant's sexual assault. On direct examination, the State asked her how she began to develop Jackson as a possible suspect. Greiman replied, “I had reason to talk or interview Mr. Jackson on an unrelated matter.” Counsel objected without stating any grounds. Without ruling on the objection, the trial court called the attorneys to the bench and asked that the jury be removed.
        Out of the jury's presence, Greiman testified that when she first spoke to Jackson, he was a suspect or person of interest in another sexual assault case. However, Jackson matched the complainant's description of her attacker. Subsequently, Greiman received a match of the DNA sample from the complainant's rape kit examination with Jackson's DNA sample on the CODIS system.   See Footnote 1  Based on the CODIS hit, Greiman secured a search warrant and obtained Jackson's DNA specimen. Based on the results of a comparison between this sample and the DNA sample from the complainant's rape kit, Greiman filed a case against Jackson for the sexual assault of the complainant.
        Jackson objected to Greiman's testimony pursuant to Texas Rules of Evidence 401, 403, and 404. He argued Greiman's “unrelated matter” testimony before the jury was highly prejudicial and asked the court to admonish the jury to disregard it and grant a mistrial. The trial court said she would have the jury disregard Greiman's last statement and denied the request for a mistrial. The State argued Greiman's statement was relevant because it showed how Jackson became a suspect in this case. The trial court cautioned the State to get answers “that do not indicate he was under suspicion, suspect or anything related to another matter.” The State agreed to instruct Greiman “to not talk about where this interview happened or where she observed Joel Jackson” and to limit questioning of Greiman “to just did you observe Mr. Jackson, that he fit a description[.]”
        The court then reviewed Greiman's testimony and said she had already ruled as to an unrelated event and it was “not to be mentioned, an event, period. It is going to be as generic as it can be.” The court then said, “As far as the DNA samples, database, that is as good as it is going to get. And then a search warrant was obtained.” Jackson's counsel said, “Let me make sure I understand, Judge. They can mention that his sample was in the database?” The trial court replied that the State “can say that a sample is in a database - or samples in a database came back by your client [sic].” The State could not “mention why his sample is in the database outright” but could say “the search was obtained because of that hit.” Jackson's counsel reiterated his objections pursuant to rules of evidence 401, 403, and 404 and that the testimony was extremely prejudicial. The trial court denied these objections.
        Before the jury, Greiman testified she observed Jackson in September 2003, which was about one year after the incident. Jackson's counsel objected and requested a running objection “to all of this.” The trial court overruled the objection. Greiman testified she considered Jackson a possible match to the description the complainant gave her of her assailant. In October 2004, Greiman requested the state crime lab to enter the DNA samples taken from the complainant's rape kit into a DNA database. Subsequently, she received a report of a hit on that database indicating Jackson, a person in the database, matched the DNA specimen from the complainant. Greiman then testified that the DNA from a buccal swab of Jackson matched the DNA sample from the complainant's rape kit.
C.
 
Discussion
 
        The record shows the trial court impliedly sustained Jackson's objection to Greiman's “unrelated matter” reference and instructed her not to mention “event.” Greiman did not mention either in her subsequent testimony before the jury. We cannot conclude Greiman's testimony that she had reason to interview Jackson on an unrelated matter shows a crime or bad act and that Jackson was connected to it. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992) (diary of miscellaneous information not depicting any criminal activity or bad acts not excludable as extraneous offense); Moody v. State, 827 S.W.2d 875, 890 (Tex. Crim. App. 1992) (question about “records” not inquiry or allusion to extraneous offenses). Thus, it fails to meet the Lockhart standard for an extraneous offense. See Lockhart, 847 S.W.2d at 573.
        Jackson also argues the testimony that his DNA was stored in a database was improper because it caused the jury to think he was a criminal generally and convict him based on that criminal nature. However, this testimony showed the circumstances surrounding Jackson's arrest and was relevant to the identity of the attacker. Thus, this evidence had relevance apart from or beyond its tendency to prove Jackson's character. See Tex. R. Evid. 404(b); Barron, 864 S.W.2d at 192-93. We conclude the trial court did not abuse its discretion in rejecting Jackson's rule 404(b) argument.
        Considering the rule 403 balancing factors, the evidence had probative value because it showed how the investigation began and how Jackson became a suspect. See Barron, 864 S.W.2d at 192-93; see also Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.) (“Police officers may testify to explain how the investigation began and how the defendant became a suspect.”). There was little or no tendency to suggest a decision on an improper basis because there was little or no implication of misconduct by Jackson or connection with criminal activity. We cannot conclude that the probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d at 641-42. We resolve Jackson's first and second issues against him.
IV. INCONSISTENT STATEMENT
        On direct examination, the complainant testified her attacker drove her to the park and told her to put her belongings in the back seat. The State asked, “What happened next?” The complainant replied, “And then he asked me if I ever had sex before. I said no. And he said, you're lying, girl. You're lying.” Subsequently, Jackson's counsel sought to cross-examine her about her statement, given to police during the course of the investigation, that what she told her assailant about her sexual history was untrue. The trial court refused to permit that line of questioning. In his fifth issue, Jackson contends the trial court erred in refusing to allow him to impeach the complainant with a prior inconsistent statement.
A.
 
Applicable Law and Standard of Review
 
         Rule of evidence 607 provides: “The credibility of a witness may be attacked by any party, including the party calling the witness.” Tex. R. Evid. 607. A witness's prior inconsistent statements are admissible to impeach the witness. Smith v. State, 520 S.W.2d 383, 386 (Tex. Crim. App. 1975). “The rule of admissibility of evidence of this nature should be liberal and the trial judge should have the discretion to receive any evidence which gives promise of exposing falsehood.” Id. Again, we review the trial court's evidentiary rulings under an abuse of discretion standard, meaning we will uphold the trial court's decision if it is within “the zone of reasonable disagreement.” Montgomery, 810 S.W.2d at 390-91.
B.
 
The Record
 
        Outside the jury's presence, the trial court asked Jackson's counsel about his request to ask about a certain portion of the police offense report regarding the complainant's statement. Counsel told the trial court he wanted to ask the complainant about “the conversation that she told the police that she had allegedly with Mr. Jackson . . ., specifically the conversation as it related to her having ever had sex before.” Counsel stated he “wanted to be able to cross-examine her based on the statement she previously made to the State.” The trial court asked counsel what he wanted to ask her about the statement. He replied the he wanted to ask her “specifically whether or not she told the police that the suspect had asked her if she had ever had sex before, and she lied telling him no.” The trial court asked him what was the purpose of asking that question. Counsel replied:
 
Well, I believe as she -- basically, Judge, for impeachment purposes as to what exactly that conversation was. I think her comments on direct where he said, no, you're lying, girl, you're lying, and in the statement she made to the police where just the opposite. We believe -- and we wanted to offer those for impeachment purposes.
 
The trial court asked if counsel's request was “to be able to go into her prior sexual behavior to show she is not being credible on the stand?” Counsel replied in the negative, and the trial court asked again what exactly was the purpose of asking the question. Counsel said it was “to impeach the previous statement she testified to today.” The trial court asked, “What is the difference between what she said today and what is in the offense report?” Counsel replied, “Well, what she is testifying to today that it was the defendant who said you're lying, you're lying.” The trial court said that was what the complainant said at trial. Counsel said, “And what she says to the police is that he asked if she had ever had sex before, and she says that she lied telling him -. . . . I believe that is fundamentally different from what she put before the jury.” The trial court said, “You're bringing in, [Counsel], that she was not a virgin when she was raped by this defendant; isn't that what you're implying?” Counsel, replied:
 
Well, that is not the purpose of the statement, Judge. The purpose of the statement is to prove that she is making one statement here before the jury today and told the police something entirely different, so we are offering that for the purposes of impeachment.
 
The trial court denied the request.
C.
 
Discussion
 
        Relying on Smith, 520 S.W.2d at 386, Jackson argues that impeachment would have exposed a falsehood, specifically, the false impression that the complainant was a virgin. However, when the trial court asked if he were bringing in evidence that the complainant was not a virgin when she was raped by Jackson, Jackson's counsel said that was not the purpose of the statement. Counsel said, “The purpose of the statement is to prove that she is making one statement here before the jury today and told the police something entirely different, . . . .” We conclude that, because Jackson's complaint on appeal does not comport with his complaint below, he has failed to preserve this complaint for review. See Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986) (if objection made in trial court differs from complaint made on appeal, defendant has not preserved any error for review).
        However, even if Jackson had preserved his complaint, we conclude there was no error. First, the complainant's testimony was a description of her response to a question from the attacker. She did not testify to the jury about her sexual history or otherwise give a false impression. The evidence sought to be elicited by Jackson would not have attacked her credibility as a witness, but would have shown only that she lied to her attacker. Such evidence would not have constituted proper impeachment evidence under rule 607.
        Second, even if such testimony were proper impeachment evidence, whether the complainant had ever had sex before this incident was a collateral matter. Generally, a party is not entitled to impeach a witness on a collateral matter. Flores v. State, 155 S.W.3d 144, 149 n.17 (Tex. Crim. App. 2004). An exception exists when a witness has left a false impression concerning a matter relating to her credibility. Id. In such a case, the opposing party is allowed to correct that false impression. Id. As noted above, however, there was no false impression concerning a matter relating to the complainant's credibility because her testimony concerned what she said to her attacker, not whether she testified truthfully or falsely to the jury about the incident. Discerning no abuse of discretion in the trial court's denial of Jackson's impeachment request, we resolve his fifth issue against him.
V. IMPROPER REMARK
        In his fourth issue, Jackson contends the trial court erred in refusing to grant a mistrial when the State engaged in name-calling during examination of the complainant.
A.
 
Standard of Review and Applicable Law
 
        We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A prosecutor should not make improper arguments and sidebar remarks because a defendant should be convicted only upon the evidence presented, without attempts to inflame or prejudice the minds of the jurors. See Renn v. State, 495 S.W.2d 922, 924 (Tex. Crim. App. 1973) (op. on re'g), overruled on other grounds by Burrell v. State, 526 S.W.2d 799, 804 & n.5 (Tex. Crim. App. 1975); Stein v. State, 492 S.W.2d 548, 551-52 (Tex. Crim. App. 1973).
B.
 
Discussion
 
        During direct examination, the State asked the complainant, “[T]hese photographs of Lions Park, that is the park that the rapist took you to; is that right?” Jackson objected “to this name calling.” The trial court sustained the objection, instructed the jury to disregard the State's last statement, and denied Jackson's motion for mistrial.
        The complainant had previously testified that a man had raped her in his car at Lions Park, and she described the details of the assault, which occurred without her consent. She had not yet identified Jackson as her attacker. Therefore, “rapist” referred to the person who assaulted her, not to Jackson specifically. In light of previous references by both the complainant and the State to rape in connection with the incident, we conclude “rapist” referred to the evidence presented, and was not an attempt to inflame or prejudice the minds of the jurors. See Renn, 495 S.W.2d at 924; Stein, 492 S.W.2d at 551-52. Discerning no abuse of discretion in denying Jackson's motion for mistrial, we resolve Jackson's fourth issue against him. See Ladd, 3 S.W.3d at 567.
VI. IMPROPER ARGUMENT
        During the State's closing argument, counsel referred to Jackson, saying, “He is a rapist and a man who preys on little girls.” (Emphasis added.) Jackson objected that the argument was “totally improper” and outside the record. The trial court overruled the objection. In his sixth issue, Jackson contends the trial court erred in overruling his objection to argument by the State that was outside the record.
A.
 
Standard of Review and Applicable Law
 
        The approved general areas of argument are: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Id.
        We disagree with Jackson's assertion that the portion of the State's argument italicized above is outside the record. There was evidence the complainant was four feet, eleven inches tall, weighed seventy-five to eighty pounds, and was “so small” a police officer was not sure she was a high school student. The complainant agreed with a description of herself as “a pretty tiny little thing.” Moreover, there was evidence Jackson was a heavy, muscular man in his 30s or 40s, so the phrase compares their physical appearances and her vulnerability because of her size. We conclude no error is shown because the statement was a summation of the evidence. See id. We resolve Jackson's sixth issue against him.
VII. CONCLUSION
        Having overruled Jackson's six issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061526F.U05
 
 
Footnote 1 CODIS refers to the Combined DNA Index System that is jointly maintained by the Federal Bureau of Investigation and various state and local agencies. See Tex. Gov't Code Ann. § 411.141(1) (Vernon Supp. 2007).